FBI trainee's bias claim falls one pushup short in court

An FBI candidate who had to choose between training to do one more pushup to get his dream job or using his energy to sue because a woman candidate would get to do 16 fewer pushups chose the legal action.

Now, he still can't do 30 pushups and has a negative appeals court ruling to boot.

Jay Bauer tried five times to pass the physical test required to become a special agent, each time falling short in the pushup phase with only 29 reps, according to reports. The FBI requires 30 pushups, among other benchmarks, for men but only 14 pushups for women. He subsequently flunked out of the FBI Academy in Quantico, Virginia, and sued on grounds of sex discrimination in 2009.

A U.S. District Judge in Alexandria, Virginia, granted the FBI summary judgment in 2014. The would-be special agent appealed to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, but ultimately came up short in what the 4th Circuit called a “relatively novel issue.”

Randi Klein Hyatt, a Timonium, Maryland-based partner at Kollman & Saucier P.A., summed up the decision in a blog post: “Fourth Circuit held that an employer does not violate Title VII (of the Civil Rights Act against sex discrimination) when it uses gender-fitness standards that account for physiological differences between the sexes if those standards require the same level of fitness of both sexes.”

The appellate court determined “the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness.”

A fitness fan, Ms. Hyatt suggested that next time Mr. Bauer try a Crossfit regimen over legal action.